Movement in the Fight for Voting Rights Restoration

Protesters gather outside the federal courthouse on July 10, 2017, in San Antonio, where a redistricting trial was taking place.

On January 23, Floridians for a Fair Democracy announced that the Second Chance Voting Restoration Amendment has qualified for the November 2018 ballot, with over 1.1 million petition signatures submitted and over 760,000 certified. The amendment will be Question 4 on the ballot.

The measure would allow people convicted of most felonies who have completed their sentences—including parole, probation, and any restitution required—to have their voting rights automatically restored upon completion. The amendment would specifically exclude people convicted of murder or sexual offenses.

This is the culmination of a tremendous amount of work by a broad coalition of organizations and constituencies, including democracy advocates, civil rights leaders, conservative religious organizations, and a number of law enforcement officials. Among the leaders were the Florida Rights Restoration Coalition and the ACLU. This success is also an indicator of the importance of felony disenfranchisement in American politics, and the momentum that has been created on the issue. Now the work of winning 60 percent of the vote, the amount required to pass a constitutional amendment, begins.

The issue also got a major boost in the Sunshine State just this week. Last March, the Fair Elections Legal Network filed suit against the governor and the clemency board, stating that their lack of any rules or standards is a violation of the equal protection clause of the Constitution. (A precipitating factor was that the number of gubernatorial pardons went from 155,000 under Governor Charlie Crist to 2,488 in the last six years under Rick Scott.) United States District Court Judge Mark Walker ruled the following: “The question is whether the Clemency Board’s limitless power over Plaintiffs’ vote-restoration violates their First Amendment rights to free association and free expression. It does. This should not be a close question.” No remedy has been ordered as of yet, but this is a major legal victory.

The salience of the issue was present in Alabama as well. In Doug Jones’s upset victory, an oft-noted factor was the dramatically strong African American turnout. But an important subplot was the fight over voting rights for people with felony convictions. After many years of effort by voting-rights advocates, the Alabama legislature passed a law in 2017 defining what constitutes "crimes of moral turpitude"—the vague and racially created standard for disenfranchisement that the state uses—thus removing a number of lesser crimes from the list. This opened up eligibility for many people convicted of lesser felonies. Pastor Kenneth Glasgow, who leads the Ordinary People’s Society voter-registration efforts, estimates that between 5,000 and 10,000 people with felony convictions were registered to vote in the month leading up to the election—less than the margin of victory, but a significant number nonetheless.

Historically, Alabama and Florida have been among states with severely punitive disenfranchisement laws. These laws, with their blatantly racist history, have kept African Americans from the polls in enormous, and enormously disproportionate numbers. In 2016, Alabama disenfranchised 286,000 otherwise eligible voters.

It is worth a small detour for a few quotes from a miserable history. Felony disenfranchisement provisions, especially in the South, date back to the post-Reconstruction era. Their intent was always clear and explicit: to disenfranchise African Americans and preserve white domination. Here are four quotes from different states.

In 1894 in South Carolina, the Daily Register newspaper urged the calling of a constitutional convention, saying, “Fortunately, the opportunity is offered the white people of the State in the coming election to obviate all future danger and fortify the Anglo-Saxon civilization against every assault from within and without, and that is the calling of a constitutional convention to deal with the all-important question of suffrage.”

In 1896, the Mississippi Supreme Court, in upholding the state’s felony disenfranchisement law, stated, “Restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone.”

In 1901, the president of the Alabama Constitutional Convention, John Knox, in his opening address, said: “The justification for whatever manipulation of the ballot that has occurred in this State has been the menace of negro domination. These provisions are justified in law and in morals, because it is said that the negro is not discriminated against on account of his race, but on account of his intellectual and moral condition.”

That same year, at the Virginia Constitutional Convention, Delegate (and future Senator) Carter Glass said: “Discrimination! Why that is exactly what we propose—to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution with the view to the elimination of every Negro who can be gotten rid of, legally, without materially impairing the strength of the white electorate. … This plan will eliminate the darky as a political factor in this state in less than five years.”

Fast-forward to today, and the statistics are staggering. Nationwide, 6.1 million people are denied their rights because of a felony conviction. Of those, 4.7 million are people who have been released from prison, are back in their communities, paying taxes, and raising families, but are denied the right to vote. The statistics vary widely from state to state, as do the laws governing the issue. In Maine and Vermont, people convicted of felonies do not lose their right to vote; punishment for a crime and the rights of citizenship are not linked. On the extreme other end are states that take away voting rights permanently, or grant them only through an individualized and arduous process. These felon disenfranchisement laws are not just disproportionately affecting African Americans. They adversely affect Latino communities in at least nine states, and millions of whites with felony convictions are disenfranchised as well.

The Sentencing Project, a leader on this issue for decades, has produced “Felony Disenfranchisement: A Primer,” an excellent resource for those who want to dig in. From the 2016 report, the six states with the largest disenfranchised populations are, in ascending order: Alabama (7.6 percent of its entire adult population); Virginia (7.8 percent of its entire adult population; 22 percent of African Americans); Tennessee (8.3 percent of its entire adult population; 21 percent of African Americans); Kentucky (9.1 percent of its entire adult population; 26 percent of African Americans); Mississippi (9.6 percent of its entire adult population).

Florida is in a class by itself, with 1.5 million people currently being denied the right to vote. This includes 22 percent of the African American population in the state, and the state’s post-sentence completion disenfranchised citizens are an astonishing 48 percent of the national total.

Despite some significant reforms over the years, the numbers are still going in the wrong direction, based on the explosion of incarcerated people over the last 30 years. In 1980, nine states disenfranchised more than 5 percent of their population; today there are 23 states that do so.

Marc Mauer of the Sentencing Project notes the two sides of the issue’s trajectory. "The trend on felony disenfranchisement policy nationally has been solidly in the direction of reform over the past 20 years. Two dozen states have enacted reforms designed to scale back the categories of disenfranchisement, enhance voter registration, and ease rights restoration. Despite this momentum, the combination of record rates of incarceration and restrictive state policies leaves us with six million citizens who are denied the right to vote."

Movement on the Issue

Daunting figures indeed, but there is important news in the real movement on this issue in a number of states. In addition to a number of recent reforms, there is significant activity this year.

Florida has gotten the most attention—not surprising given the numbers above. The campaign will be hard, but it is picking up support, including bipartisan support. It has significant funding, strong and multiracial leadership, and, though 60 percent of the vote is high bar, a success here could dramatically reform the state’s landscape and the trajectory of the issue nationally.

New Jersey is another state that has a real chance to make significant change this year. With a new Democratic governor who campaigned on criminal justice reform, Democratic majorities in both houses, and legislation already filed by two veteran senators, the possibilities for success are real. A recent report issued by the New Jersey Institute for Social Justice (NJISJ) called “We Are Not 1844” makes note of the year felony disenfranchisement was passed and the 94,000 people currently disenfranchised.

The campaign has made a bold and potentially risky decision to campaign for a full restoration of voting rights, including for people currently incarcerated, "separating the criminal justice system from the right to vote entirely" as is done in Maine and Vermont. According to Scott Novakowski of the NJISJ, “This is a perfect time to take a look at a policy with such discriminatory impact and no public safety value. We can make New Jersey a model of what an inclusive democracy can look like.” The legislature will go to work on this in the next several months.

In Virginia, there has been a major fight over this issue, which will certainly continue. Former Governor Terry McAuliffe pardoned, individually, 173,000 people to allow them to vote, over the fierce objections of the Republican legislature. Now that the “Virginia Earthquake” has taken place, the dynamics on this issue look very different. It will be a major challenge to make legislative progress, since Virginia’s lifetime ban is in the state’s constitution, which requires two legislative sessions to pass an amendment, which then goes to the voters. But Governor Ralph Northam vows to continue the progress McAuliffe began, including continuing reinstatements of individual felon voting rights, and a proposed increase in the threshold for felony charges in robberies so as to decrease disenfranchising incarceration. In addition, the New Virginia Majority and other organizations are engaged in a full-throttle effort to locate people whose voting rights have been restored and get them registered for the 2018 elections.

In Louisiana, a suit filed in 2016 seeks voting rights for people on parole or probation by challenging the definition of “under a sentence of confinement.”

Progress on this issue is not a fast-moving train, but it has momentum and appears to be gathering speed. All the efforts underway now could be a prelude to even more progress in states in 2019. It’s obviously way too early to predict, but if the potential electoral wave in Virginia, Alabama, and other places continues into November, there will be a number of states with a very different political, gender, and racial composition in their legislatures. It’s a good bet that advocates for the restoration of voting rights will be ready to make an even stronger case for change when the 2019 legislative sessions begin.

Cecily Hines provided research and editing assistance for this article.

From the start, the group overreached, alienating voting rights groups and secretaries of state with its demands.

About the Author

Miles Rapoport is a longtime democracy advocate who served as secretary of state in Connecticut, and president of both Dēmos and Common Cause. He is the Senior Practice Fellow in American Democracy at the Ash Center of the Kennedy School at Harvard and a member of the board of The American Prospect.